Wisconsin’s post-Trammell burden of proof: links, strategies, and updates

This is a reminder to Wisconsin’s criminal defense lawyers to continue to litigate the JI 140 issue, even after SCOW’s decision in Trammell.  Although SCOW refused to reverse defendant Trammell’s conviction, the Trammell majority was very clear: “The circuit court has the authority to modify the language [of JI 140], and the comment to the jury instruction even provides optional language.” Trammell, ⁋ 23.  Consistent with SCOW’s reminder, trial judges throughout the state are, in fact, continuing to modify JI 140, even post-Trammell. 

                                                                                             

Toward that end, I have drafted a request to modify JI 140 that I use in all of my trials.  It includes, as Exhibit A, a proposed, modified instruction that eliminates the truth-not-doubt mandate.  It also includes, as Exhibit B, an alternative proposal which is less than ideal but still better than the current JI 140.  All Wisconsin lawyers are free to use parts of it or the entire document—no attribution is necessary as far as I am concerned.  Just go to the JI 140 resource page and scroll to the very bottom.  It is in MS Word format and is titled “POST-TRAMMELL request to trial court to modify JI 140.”  

When trial judges refuse to modify JI 140, I argue the following in closing argument to the jury when discussing the burden of proof.  This argument is designed to make sense of the contradictory language in JI 140 which first explains reasonable doubt, but then tells the jury not to search for doubt.  I argue something like this:

The judge was clear: you must not presume guilt and then search for doubt.  That’s the wrong approach.  What you must do—what the law requires—is to start with the presumption of innocence.  Then, you must determine whether the state proved the truth of its case beyond a reasonable doubt.

This is the highest burden of proof.  It is not a reasonable suspicion of guilt; it’s higher than that.  It is not proof by the preponderance of evidence; it’s higher than that.  It is not proof by clear and convincing evidence; it’s higher than that.  The state must prove guilt beyond a reasonable doubt, or you must find the defendant not guilty. 

This argument is, of course, 100 percent accurate.  In addition, with regard to the first paragraph: (1) it might be the only way—or at least the best way—to reconcile JI 140’s contradictory language; (2) it keeps the burden of proof on the state by focusing the jury on whether the state proved guilt beyond a reasonable doubt, rather than on whether the defendant produced reasonable doubt; and (3) it uses all of the key words from JI 140 and preempts the prosecutor’s rebuttal closing argument that “you should not search for doubt, you should search for the truth.”

Finally, for an update: the Trammell concurrence asked the JI Committee to reevaluate JI 140 in light of two things.

FIRST, the Trammell concurrence was concerned about the possible burden-lowering effect of JI 140’s truth-not-doubt mandate:

[T]he instruction could exacerbate the risk that the jury will convict based upon a lesser level of certainty than beyond a reasonable doubt when, after . . . defining "reasonable doubt," the jury is told not to search for doubt, but to search for "the truth."  Trammell, ⁋ 79. 

This is, of course, the same burden-lowering impact that Larry White and I found in two controlled experiments that empirically tested Wisconsin’s truth-not-doubt mandate.  In our first study-turned-article, we wrote:

In fact, not only did truth-related language diminish the burden of proof, it actually eviscerated it. Group C in our study—the group that received a reasonable doubt instruction followed by a contradictory instruction “to search for the truth”— convicted at a rate of 29%. This rate is, statistically speaking, identical to the 29.6% conviction rate of group A—the group that received no reasonable doubt instruction whatsoever—and is nearly double the 16% conviction rate of Group B, which received a legally proper reasonable doubt instruction. C&W, Richmond, p. 1157.

In our second study-turned-article, a conceptual replication of the first, Dr. White and I wrote:

[This] finding confirms our hypothesis that adding truth-related language to the end of an otherwise proper reasonable-doubt instruction diminishes the state’s burden of proof. That is, the jurors in Group 1, who were instructed simply to evaluate the state’s evidence for reasonable doubt, convicted at a rate of 22.6%. However, the jurors in Group 2, who were instructed “not to search for doubt” but instead “to search for the truth,” convicted at a rate of 33.1%—a conviction rate nearly 50% higher than Group 1’s rate. This replicates the finding in our original study, which also revealed a statistically significant gap in conviction rates when testing the identical hypothesis. C&W, Columbia, p. 32.

           

SECOND, the Trammell concurrence was also concerned about JI 140’s burden-shifting effect as it focuses not on the level of proof the state must present, but rather on the level of doubt the defense must produce.  The concurrence wrote:

Wis JI 140 fails to define "beyond a reasonable doubt." . . . [Instead], Wis JI 140 describes what a "reasonable doubt" is . . . The instruction further describes what a "reasonable doubt" is not: "a doubt which is based on mere guesswork or speculation," "[a] doubt which arises merely from sympathy or from fear to return a verdict of guilt," and "a doubt such as may be used to escape the responsibility of a decision." Yet nowhere in Wis JI 140 is the jury told the required level of certitude they must reach to convict. Trammell, ⁋ 75-78 (emphasis added). 

This is the same concern I raised in an earlier article.  In the section of the article called “unreasonable doubts,” I wrote:

[B]y enumerating all of these supposedly unreasonable doubts that should not be used as the basis for an acquittal, the instruction is shifting the burden of proof to the defendant.  . . . “Such a message is likely to focus jurors on the strength of the defendant’s case as a criterion for acquittal rather than on whether the government has proven its case with near certitude.” California, p. 78-79 (quoting Lawrence Solan) (emphasis added).

            I have it on good authority that the JI Committee will, in fact, be reconsidering JI 140 this fall.  Hopefully, at a minimum, the Committee will finally strike the unconstitutional mandate “not to search for doubt.”  If the Committee decides to correct the second problem, i.e., JI 140’s burden-shifting discussion of reasonable versus unreasonable doubt instead of what constitutes proof beyond a reasonable doubt, I recommend explaining the concept in relative terms by comparing and contrasting it with the two lower, civil burdens of proof.  I recently tested such an instruction in my new study-turned-article Reasonable Doubt and Relativity, and it successfully conveyed to test participants just how high the state’s burden of proof actually is.